{"id":181998,"date":"2003-12-04T00:00:00","date_gmt":"2003-12-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/arumugam-vs-state-by-inspector-of-police-on-4-december-2003"},"modified":"2019-03-26T20:29:10","modified_gmt":"2019-03-26T14:59:10","slug":"arumugam-vs-state-by-inspector-of-police-on-4-december-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/arumugam-vs-state-by-inspector-of-police-on-4-december-2003","title":{"rendered":"Arumugam vs State By Inspector Of Police on 4 December, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Arumugam vs State By Inspector Of Police on 4 December, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n In the High Court of Judicature at Madras\n\nDated: 04\/12\/2003\n\nCoram\n\nThe Honourable Mr. Justice P.SATHASIVAM\nand\nThe Honourable Mr. Justice M.THANIKACHALAM\n\nCrl. Appeal No. 334 of 1995\n\nArumugam            ...                               Appellant\n\n-Vs-\n\nState by Inspector of Police\nNamakkal Police Station.   ...                       Respondent\n\n\n                Appeal against the order of life imprisonment  passed  by  the\nlearned  Principal  District  and  Sessions Judge, Salem dated 27.4.93 in S.C.\nNo.34\/93.\n\n!For Appellant ::  Mr.S.Ashokkumar\n\n^For Respondent ::  Mr.V.Jayaprakash Narayanan,\n                Government Advocate (Crl.side)\n\n\n:JUDGMENT\n<\/pre>\n
M.THANIKACHALAM, J.\n<\/p>\n
                The accused in  S.C.    No.34\/93  on  the  file  of  Principal
\nSessions Judge, Salem is the appellant.\n<\/p>\n
                2.    The   accused\/appellant   was   directed   to  face  the
\nprosecution, for the offence under section 302 IPC on the ground that  he  had
\ncommitted the murder of his brother’s wife, by name Pushpa, on 29.9.91 with an
\nintention to commit murder, by causing cut injuries, at about 12 noon.\n<\/p>\n
                3.   Upon considering all the materials placed before him, the
\nlearned Principal Sessions Judge satisfied himself, to proceed  further  after
\nframing the  charge against the accused.  The accused refused to plead guilty,
\nwhen the charge was explained to him, thereby compelling  the  prosecution  to
\nmake out a case, for his conviction.\n<\/p>\n
                4.   On  behalf  of  the  prosecution, to prove the charge, 16
\nwitnesses have been examined, seeking aid not only from 23 exhibits, but  also
\nfrom material  objects.  The scanning and the weighing of the above materials,
\nin its proper perspective, revealed the fact that the  accused  had  committed
\nthe murder of his brother’s wife by using M.O.12, causing cut injuries.  Thus,
\nconcluding  the  learned trial Judge, by his judgment dated 27.4.93, convicted
\nand sentenced the accused under section 302, IPC to undergo life imprisonment,
\nwhich is in challenge before us.\n<\/p>\n
                5.  Facts in brief leading to the conviction:- The accused  is
\nthe younger  brother of Thiru Boomi Udaiyar (PW1).  PW1 married one Pushpa, as
\nhis second wife after the demise of the first wife, by name Pappathi.  PW1 has
\na son and a daughter through the first wife.  The son’s name is  Kesavamurthi,
\nand the daughter is Sasikala (PW2).  They are all residing in the same house.\n<\/p>\n
                6.   The accused had illicit intimacy with the wife of PW1 and
\nthe same was one day witnessed by PW1, when they were in a compromising  mood.
\nIn  order to solve the dispute, PW1 convened a panchayat which was presided by
\nMurugesa Udayar (PW5) on 28.9.91.  In the panchayat,  PW4    Pachamuthu  also
\nparticipated  since  he  was  present  when the dispute had arisen between the
\nparties on 26.9.91.  In the panchayat, the accused and Pushpa were called  and
\nafter  discussion,  the  accused  was directed to pay a fine of Rs.300\/-, with
\nwarning to discontinue their illegal activities, which caused irksome  to  the
\naccused, resulting  warning  also,  to  Pushpa  aiming  her  life.   When this
\nbehaviour of the accused was noticed by PW5, he  also  warned  him  to  behave
\nproperly, at  least  thereafter.    The accused felt that he was put to shame,
\nbefore the panchayatdars and decided to take vengeance.\n<\/p>\n
                7.  On 29.9.91, PW1 went to the lands for his day-to-day work.
\nPW2 and her step-mother namely, Pushpa were  in  their  house,  and  it  seems
\nPushpa was  in  the  cattle shed.  The accused came there, at about 12 noon in
\nM.O.13 cycle, having koduval  M.O.12  hanged  in  the  handle  bar.    It  was
\nwitnessed by  Parvathi  (PW3).  The accused assaulted Pushpa, causing multiple
\ncut injuries, which was witnessed by PW2.  PW2 immediately informed  the  same
\nto his  father  PW1.  The accused after assaulting Pushpa returned in the same
\ncycle (MO13) which was also witnessed by PW3.  At about 12.30 pm on  the  same
\nday, when  PW8  was  doing  his  agricultural work the accused went there.  By
\nseeing the blood  stain  in  the  dress,  when  PW8  questioned,  the  accused
\nconfessed about  his act namely, cutting the wife of his brother.  Thereafter,
\nleaving the cycle  with  the  custody  of  PW8,  informing  him,  that  he  is
\nproceeding to Kollimalai, the accused left the place of PW8.\n<\/p>\n
                8.  On information by PW2, when PW1 went to the scene of crime
\nhe  noticed the dead body of his wife, and therefore, in order to have redress
\nhe approached the police at about 2 pm.<\/p>\n
                9.  Thiru Chinnathambi, the  then  Sub  Inspector  of  Police,
\nErumapatti  police  station, on the basis of the information furnished by PW1,
\nreduced the same into writing (Ex.P1) and on that basis he registered  a  case
\nin  Crime  No.391\/91 under section 302 IPC, for which he submitted the printed
\nFIR Ex.P21 to the court concerned, marking a copy also  to  the  Inspector  of
\nPolice for investigation.\n<\/p>\n
                10.   Thiru Muthusamy (PW16) on information went to Erumapatti
\npolice station and obtaining a copy of the printed FIR, reached the  scene  of
\ncrime,  inspected  the premises, in the presence of the witnesses and prepared
\nobservation mahazar Ex.P2, as well as sketch  Ex.P22  in  addition  to  making
\narrangement for  photos,  being taken through PW10.  Between 4.30 and 8.00 pm,
\nPW16 conducted inquest in the presence of panchayatdars as  well  as  examined
\nthe witnesses, and the result is Ex.P23 inquest report.  To ascertain further,
\nthe  actual  cause of death, the body of Pushpa was sent for postmortem with a
\nrequisition Ex.P16,  through  PW14,  from  the  place  of  crime.    PW16   in
\ncontinuation of the investigation seized M.Os.7, 9, 10 & 11 in the presence of
\nthe witnesses under the cover of mahazar Ex.P3.\n<\/p>\n
                10.   On 30.9.91 at about 11 am as per the request made by the
\ninvestigating officer under Ex.P14, PW12 conducted an autopsy over the body of
\nPushpa which revealed the following external injuries:
\n(1) Incised injury of about 15 cm x 3 cm x bone deep over the  right  side  of
\nthe  face  starting  from  the angle of the right eye running backwards to the
\nback of the mastoid region, the  muscles  and  the  bone  underneath  are  cut
\nthrough on exploration clotted blood seen.\n<\/p>\n
(2) Incised injury of about 15 cm x 4 cm x bone deep about the left ear to the
\nback of  the neck.  On exploration the muscles and the bone underneath are cut
\nthrough, blood clots are also seen.\n<\/p>\n
(3) An incised injury of about 10 cms x 3 cms x bone deep  starting  from  the
\nchin  running  backwards  to  the  right side of neck exposing the cut ends of
\nmuscles and vessels in the neck on exploration clotted blood seen.
\n(4) Incised injury of about 15 cms x 7 cms x bone deep from the lateral end of
\ninjury No.3 running backwards to the left side and join with the  injury  No.2
\nthe  severed  ends of muscles and bones all seen through clotted blood is seen
\non exploration.\n<\/p>\n
(5) A small abrasion of about 1 cm x 1 cm over the right side chest.\n<\/p>\n
The doctor analysing the  above  injuries  and  the  damage  caused  by  those
\ninjuries,  internally,  was of the opinion that the deceased died due to shock
\nand haemorrhage caused by multiple injuries, which are incorporated in Ex.P15.\n<\/p>\n
                11.  On 30.9.91 at  about  6  am  the  Village  Administrative
\nOfficer, PW7 was in his office with one Karunanidhi.  At that time the accused
\ncame  there  and  confessed, that he had committed the murder of his brother’s
\nwife, due to the previous enmity as well disclosing  the  concealment  of  the
\nweapon etc.    This  was  reduced  into  writing  by  PW7,  as  Ex.P4 in which
\nKarunanidhi also signed.  Thereafter he handed over the  confession  statement
\nEx.P4 to the Inspector of Police, along with the accused.\n<\/p>\n
                12.  The investigating officer PW16, at about 8 pm on 30.9.91,
\non  the  surrender  of the accused through the Village Administrative Officer,
\nalong with Ex.P4, arrested him and further enquired.  The accused  voluntarily
\ngave  a confession statement (Ex.P5), disclosing the place where the weapon is
\nconcealed, in the presence of PW7 and another witness.  PW16 noticed the blood
\nstain, in the shirt and dhoti worn by the accused (M.Os.15 and 14), which were
\nrecovered under Ex.P8.  In  pursuance  of  the  confession  statement,  M.O.12
\nkoduval was  also  recovered  by  PW16,  under Ex.P6.  Thereafter, he has also
\nidentified the cycle which was recovered from PW8, under Ex.P7.  Examining the
\nother witnesses recording their statements, concluding the investigation,  the
\nmaterial objects seized were also sent for chemical examination.  In addition,
\nPW16, made arrangements for recording section 164 statements of the witnesses,
\nthrough PW11 Judicial Magistrate, Rasipuram.  The entire investigation so done
\nby  PW16, brought to surface the guilt of the accused and in this view he laid
\na final report before the appropriate court, leading to trial culminating in a
\nconviction as stated above, giving a cause of action  for  the  appellant,  to
\nprefer this  appeal.    In this way the judgment of conviction and sentence of
\nthe trial court is in challenge before us.\n<\/p>\n
                13.  Heard Mr.S.Ashokkumar, learned counsel appearing for  the
\nappellant  and Mr.V.Jayaprakash Narayanan, learned Government Advocate for the
\nState, who took pain of taking us through the oral evidence  as  well  as  the
\ndocumentary evidence, to dwell upon the matter, for deep consideration.\n<\/p>\n
                14.   The learned counsel for the appellant attacked the trial
\ncourt verdict mainly on the following grounds:\n<\/p>\n
(1) The alleged motive is not at all proved and even if proved, that could not
\nbe the cause for the murder;\n<\/p>\n
(2) that the only alleged eye witness PW2 turned hostile, because of the  fact
\nshe could not have seen the incident;\n<\/p>\n
(3)  that the alleged extra judicial confession said to have been given by the
\naccused to PW7 is a myth and the alleged extra judicial confession must be the
\nhandy work of the police, which could not be the basis  for  conviction  under
\nlaw since inadmissible also; and
\n(4)  that the accused was seen near the scene of crime sought to be introduced
\nthrough PW3 is an imagination.  On these lines, the learned counsel urged that
\nthe trial court without properly appreciating the case, erroneously  convicted
\nthe  accused,  failing to give at least the benefits of doubt, which should be
\nmade available to him at least in this  court,  thereby  acquitting  from  the
\ncharges.\n<\/p>\n
                15.  Learned  Government  Advocate  (Crl.  Side) would contend
\nthat  though  PW2  turned  hostile  there  are  unimpeachable   circumstantial
\nevidence, encircling the accused in proving the crime, that there is no reason
\nof  any  kind  to  discard  the extra judicial confession given by the accused
\nbefore the Village Administrative Officer  which  could  form  the  basis  for
\nconviction,  since  corroboration  is  available  in  plenty  from  the  other
\ncircumstances also.  In this view, he supports the  reasonings,  findings  and
\nconviction rendered by the trial court.\n<\/p>\n
                16.  The  accused  is  the younger brother of PW1.  PW2 is the
\ndaughter of PW1 and the deceased Pushpa.  PW4 and PW5 are the neighbours.   It
\nis also an admitted fact, that the accused and the deceased were living in the
\nsame house  in  different portion.  The first wife of PW1 by name Pappathi and
\nthe wife of the accused are sisters.  The second  wife  of  PW1,  Pushpa,  was
\nmurdered on  29.9.91 at about 12 noon, when she was in her cattle shed.  It is
\nthe case of the prosecution that the accused alone had committed the murder by
\ncutting her with MO12, which was witnessed by  PW2.    Unfortunately  for  the
\nprosecution  and  we  could  say,  fortunately  for the accused, PW2 failed to
\nsupport the case of the prosecution.   The  fact  that  Pushpa  was  murdered,
\ninformed by  PW2  to  PW1,  is  not  in  dispute.    PW2  would state that her
\nstepmother was done to death  by  Kesavamurthi,  her  brother,  who  was  also
\npresent in the house on that day, though he was working elsewhere, as cleaner.
\nThus,  PW2  had  tilted the case, informing that Kesavamurthi is the cause for
\nthe death.  Kesavamurthi being the son of the deceased, as well  as  PW1,  the
\nprosecution  ought  to  have  examined  him,  as  a  witness  to  rule out the
\npossibility of himself, involving in this incident, that too, because  of  the
\nevidence given  by  PW2  since  circumstantial  evidence  is  relied on.  But,
\nunfortunately Kesavamurthi is not examined.  Be that as the case may  be,  the
\nfact remains  PW2  turned hostile.  The reason alleged by the prosecution, for
\nnot supporting the case also, appears to be unacceptable.   Admittedly,  P.W.1
\nis the  father  of  P.W.2  and the deceased is the mother.  The accused is the
\njunior paternal uncle of P.W.2 i.e.  the brother of P.W.1.  On  the  basis  of
\nthe  relationship,  question of choosing the relation comes for consideration,
\ngenerally it should be in favour of the father and the  mother.    But,  P.W.2
\ndisowned  the  prosecution  case,  though the prosecution say that accused had
\ncommitted the murder of the mother of P.W.2.  This would  indicate  P.W.2  had
\nnot  witnessed  the incident or if she had witnessed the incident as spoken by
\nher,  then  the  murder   might   have   been   committed   by   Kesavamurthi.
\nUnfortunately, ignoring this aspect, the trial Court has taken a contrary view
\nand  believed  the  extra  judicial  confession,  ignoring  the account of eye
\nwitness.  Thus the prosecution case is weakened, we could  say,  at  least  to
\ncertain extent.\n<\/p>\n
                17.   PW11  had  recorded  the  statements  of witnesses under
\nsection 164 Cr.P.C.  and they are also exhibited.  But,  unfortunately,  after
\nPW2  was treated hostile, the statement said to have been given by her, before
\nthe Judicial Magistrate, was not  put  to  her,  either  for  confirmation  or
\ndenial.   Therefore,  the statement said to have been given by PW2, willingly,
\nbefore the Judicial Magistrate became useless, the fact being the same is  not
\nthe substantial  evidence.   In this view, the entire oral evidence of PW2 has
\nbeen vanished.  Therefore, the prosecution at present is mainly depending upon
\nthe circumstantial evidence, to prove the  offence,  supported  by  the  extra
\njudicial confession.    Before  scanning the above materials, we will find out
\nthe cause, for the death of Pushpa.\n<\/p>\n
                18.  At the request of the investigating officer under Ex.P14,
\nPW12 conducted autopsy over the body of the deceased Pushpa.  The  doctor  had
\nnoticed five injuries, as narrated above.  Out of five injuries, four injuries
\nare  incised  wound  and  those  injuries  alone caused shock and haemorrhage,
\nresulting the termination of the life of Pushpa prematurely.  When the  doctor
\nhad spoken about the injuries and the cause of death of Pushpa, as narrated in
\nEx.P15 also,  the  same  is  not challenged.  The doctor also opined, that the
\ninjuries noted by him would have been caused by a weapon like MO12,  which  is
\nalso not challenged.  Therefore, if the prosecution proves to the satisfaction
\nof  the  court,  inspiring  confidence in the mind, that the injuries noted in
\nEx.P15 were inflicted by the accused using MO12, then there is no way for  the
\naccused, to  escape  from the clutches of section 302 IPC.  On the other hand,
\nfailure to prove or if there is any possibility to infer,  that  the  incident
\nmight  have  been taken otherwise also, then spontaneously a doubt would arise
\nand the  accused  would  be  entitled  to  his  benefits  under  the  criminal
\njurisprudence.\n<\/p>\n
                19.   In  a case of circumstantial evidence, the circumstances
\nrelied on by the prosecution, should encircle the accused leaving no scope  or
\npossibility for  the  accused to escape from the said circle.  For this, there
\nshould be no crack or snap in the chain of events of circumstances.   Even  if
\none link is broken, then the possibility comes, automatically, for the accused
\nto escape  through  that gap.  In this case the circumstances mainly relied on
\nby the prosecution are,
\n(1) there was enmity based upon motive between the deceased and the accused;
\n(2) that when the accused came to the scene of crime with M.O.12 in M.O.13, it
\nwas witnessed by PW3 as well as when he  left  the  scene  of  crime,  it  was
\nwitnessed by him;\n<\/p>\n
(3)  that  after  the  incident  he  confessed  before PW8, and left the place
\nleaving the cycle in the custody of PW8, which  was  later  recovered  on  the
\nconfession of the accused;\n<\/p>\n
(4)  that the accused had given a confession before the Village Administrative
\nOfficer, which is generally called ‘extra  judicial  confession’,  wherein  he
\nconfessed the guilt;\n<\/p>\n
(5)  that  in  the  dresses  worn  by  the  accused blood stains were noticed,
\nimmediately to the occurrence not only by PW8 but also at the time  of  arrest
\nby the investigating officer; and
\n(6)  that  the  weapon  M.O.12  and  the  cycle  M.O.13 were recovered, on the
\nvoluntary confession given by the accused.  On the  above  circumstances,  the
\nlearned  Government  Advocate  would submit that the case is proved beyond all
\nreasonable doubts.\n<\/p>\n
                20.  In a case of circumstantial evidence  the  motive  should
\nplay  prominent  and predominant role though it may not be so essential, where
\nocular evidence is available in plenty.  It is the case  of  the  prosecution,
\nthat  the  accused had illicit intimacy with the wife of PW1, and the same was
\nnoticed by him also.  PW1 would state that he suspected the  fidelity  of  his
\nwife, since his wife returned with his brother in the same bus, though he left
\nher at  Ramuudayanur  village  for  performing  the ‘nombu’.  He would further
\nstate, that in the month of ‘Adi’ he has seen the  accused  and  Pushpa  lying
\ntogether in  a  compromising  mood.    If this is the fact, what should be the
\nnatural reaction of a husband, is the question.   The  answer  should  be,  he
\nought  to  have  reacted and assaulted the accused or attempted to assault the
\naccused and the wife, also questioning their conduct.  Admittedly  it  is  not
\nhappened,  whereas  a  theory  of panchayat is introduced, which appears to be
\nhighly unnatural.  This theory was not disclosed to the Investigating  Officer
\nalso  when  P.W.1  was  examined,  thereby  showing that this must be an after
\nthought.  According to PW1 he convened a panchayat, which was attended  to  by
\nPW4 and  PW5.  In the panchayat, it seems Pushpa has not supported the accused
\nand therefore, it is the  case  of  the  prosecution,  the  accused  has  been
\naggrieved and decided to commit murder.  The reasoning given so, appears to be
\nflimsy and unnatural in our view.  If the accused and the deceased had illicit
\nintimacy,  then  Pushpa would not have disclosed the same before the panchayat
\nand she would have taken all possible steps generally to  save  her  paramour.
\nEven  assuming that Pushpa failed to support the accused, the grievance of the
\naccused must be against his brother-PW1,  since  he  alone  took  the  accused
\nbefore  the  panchayatdars,  thereby  reducing  his  image  since  it  is said
\npanchayatdars imposed fine.  Therefore, the evidence given by PWs.1, 4  and  5
\nthat  the  accused warned Pushpa, even before the panchayatdars, appears to be
\nsome what unnatural and unacceptable to us.  In this view,  we  conclude  that
\nthis  motive  part  alleged  by  the  prosecution  is flimsy and unacceptable.
\nAssuming that the oral evidence of PW1 could be accepted, supported by PW4 and
\nPW5, in our opinion, the motive is not connected with the  subsequent  events,
\nand  therefore,  proof  of  motive  alone will not take us to the irresistible
\nconclusion, that the accused would have committed the murder of Pushpa,  since
\nwe  find  so  many  grey  area in the case of the prosecution, unexplained and
\nunsupported by any acceptable evidence.\n<\/p>\n
                21.  Ex.P1-complaint, given by PW1  set  the  law  in  motion.
\nAdmittedly PW1  is  not the eye witness.  Therefore, the statement recorded on
\nthe  information  furnished  by  PW1  could  not  be  taken  as  true   unless
\ncorroborated.   It  is the case of PW1 also, that on the information furnished
\nby PW2, he came to know the involvement of the accused, in murdering his  wife
\nPushpa.   The  person,  who  is  said to have informed the actual incident, as
\naforementioned, turned hostile and thereby the chain  is  snapped.    In  this
\nview,  the  averments  in Ex.P1 would not support the case of the prosecution,
\nexcept if at all the motive.  In this  view,  though  there  is  no  delay  in
\npreferring  the  complaint,  we  are  unable to accept the contents therein as
\ncorrect and the averments in the complaint could not be treated as substantive
\nevidence also.\n<\/p>\n
                22.  Learned counsel for the appellant submits, that the  case
\nspoken  to  by  PW3 that she had seen the accused just prior to the occurrence
\nmust be incorrect, appears to be correct, by going through her evidence.   The
\nincident took  place on 29.9.91 Sunday.  But PW3 would state that she had seen
\nthe accused 1 = years ago, in the month of ‘ Purattasi’ on the second Saturday
\nat about 12 noon.  If the evidence is to be accepted as such it would indicate
\nthat PW3 might have seen the accused, not on the date of the  occurrence,  but
\nprevious  to  the  date  of  the  occurrence, which would not be sufficient to
\nconclude, that he would have committed the murder of the deceased, on  29.9.91
\nSunday at 12 noon.  Even by way of re-examination, it is not clarified how PW3
\nhas  given  the  day  as  Saturday, the admitted fact being, the incident took
\nplace only on Sunday.  She would state further, that the  accused  went  in  a
\ncycle, having  the  koduval in the handle bar.  She has neither identified the
\ncycle, nor the koduval at the time of examination in chief.   Only  after  the
\ncross examination, when she was examined with the permission of the court, she
\nhad identified  M.O.13,  where  also  she failed to identify the koduval.  She
\nwould state, that the accused, who  crossed  her,  returned  within  5  or  10
\nminutes.  It is the case of the prosecution that M.O.12 was used, to cause cut
\ninjuries to  the  deceased  Pushpa.    Hence,  if really PW3 had witnessed the
\nincident, then she ought to have noticed the weapon with blood, which she  has
\nnot spoken.   Therefore, the evidence given by PW3, failed to substantiate the
\n‘ last seen’ theory just prior to the incident, in order to indict the accused
\nwith the crime.  Even assuming that PW3 has given the day, due to  failure  in
\nmemory  as  Saturday,  instead  of  Sunday,  in our opinion, in the absence of
\nidentification of the weapon, it is not possible to conclude that the  accused
\nalone  should have committed the murder of Pushpa that too, in the face of the
\nstatement given by PW2,  that  her  brother  Kesavamurthi  had  committed  the
\nmurder.  Further, she has also not identified the shirt and dhoti, worn by the
\naccused  at  the time of the incident, which is sought to be introduced by the
\ninvestigating officer, as if recovered with blood stains.  In this  view  also
\nthe  last  seen  theory  automatically  vanishes  and  on  the  basis  of this
\ncircumstance  connecting  or  roping  the  accused,  with  the  crime  is   an
\nimpossibility.\n<\/p>\n
                23.   On  the  basis  of the extra judicial confession said to
\nhave been given by the accused to PW8  a  case  is  sought  to  be  made  out.
\nLearned  counsel  for  the  appellant submits that the oral evidence of PW8 is
\nhighly artificial and believing his evidence is unsafe.  According to PW8,  on
\n29.9.91  at  about  12.30 pm the accused came to his land in the cycle and his
\ndresses were seen with blood.  On  enquiry,  according  to  PW8,  the  accused
\nconfessed to him, about the murder committed by him.  If it is so, what should
\nbe the  reaction of P W8 is the question.  He also belongs to the same village
\nand he is known to PW1 also.  Therefore, his  immediate  reaction  would  have
\nbeen to inform at least PW1 about the crime committed by his brother.  But PW8
\nhas  not  acted  as a reasonable man expected to be, which would show the case
\nspoken by PW8, that the accused had confessed about his  guilt,  must  be  the
\nimagination of  the  investigating officer, through PW8.  The inaction and the
\nabsence of immediate reaction on the part of PW8, prompt us to  say  that  the
\naccused  would  not  have confessed to him, about the murder said to have been
\ncommitted and that is why he had not acted as  a  prudent  man,  in  not  even
\nreporting the matter, either to the police or to PW1 and our view is supported
\nby the  decision  in Kali Ram v.  State of Himachal Pradesh<\/a> {(1973) 2 SCC 808}
\nwherein the Supreme Court ruled that “if another witness came to know  of  the
\nmurder, his failure to make a statement to the police regarding the confession
\nmade  by  the accused to the witness would deprive his evidence of much of its
\nvalue.”\n<\/p>\n
                24.   The  strong  piece  of  evidence  relied  upon  by   the
\nprosecution  is the extra judicial confession given by the accused to PW7 that
\nis, Ex.P4.  It is an admitted position, that extra judicial  confession  is  a
\nweak  piece  of  evidence and unless it is corroborated by other unimpeachable
\ncircumstances; relying upon the extra judicial  confession  alone,  convicting
\nthe accused  would  be  unsafe.   In this view, we have to see, when the extra<\/p>\n
judicial confession was given, what is the evidentiary value of the said extra
\njudicial confession,  whether  it  is  corroborated  and  confirmed  by  other
\nattending circumstances to have the sanctity.\n<\/p>\n
                25.  Learned counsel for the appellant attacks the validity of
\nEx.P4  , mainly on two grounds namely; (1) that Ex.P4 would not have come into
\nexistence as indicated in the document, and it must be the handy work  of  the
\ninvestigating  officer,  (2)  that the extra judicial confession is hit by not
\nonly under Rule 72 of the Criminal Rules of Practice, but also  under  section
\n162 Cr.P.C.   In  this  case F.I.R.  was registered on 29.9.91 itself, thereby
\nindicating investigation commenced on the same day, and it is the case of  the
\nprosecution also.    The  Criminal  Rules  of  Practice are framed by the High
\nCourt, in exercise of the powers conferred by Article 227 of the  Constitution
\nof  India, with the previous approval of the Governor and therefore, generally
\nit should have the enforcing effect.  Rule 78 says  “Village  Magistrates  are
\nabsolutely  prohibited  from  reducing  to writing any confession or statement
\nwhatever made by an accused person after the police investigation has  begun.”
\nThus  it  is  seen, a prohibition is imposed upon the Village Magistrates from
\nrecording any statement that too, confession also.  Admittedly in this case as
\nspoken by PW7 the extra judicial confession was recorded on 30.9.91 at about 6
\nam, that is, after the investigation has begun.  Therefore, Ex.P4  is  hit  by
\nRule 72.    On this basis, the learned counsel for the appellant submits, that
\nno reliance could be placed upon Ex.P4.  On the other hand, learned Government
\nAdvocate relying upon a decision in Sakthivel v.  State {(2003) M.L.J.  (Crl.)\n<\/p>\n
752) would contend, that  the  extra  judicial  confession  is  admissible  in
\nevidence and  in this view, it is not possible to ignore the same in toto.  In
\nthe above ruling, a Division Bench of this Court had  taken  a  view,  seeking
\nsupport from the previous decisions also as under:\n<\/p>\n
“The  extra-judicial  confession  given  by  the  accused to P.W.9, though was
\nsubsequent to the beginning of investigation, is not inadmissible in evidence,
\nonly its evidentiary value is reduced.  Therefore,  Ex.P-3  is  admissible  in
\nevidence.”\n<\/p>\n
Here, the admissibility of the extra judicial confession namely, Ex.  P4 alone
\nis  not  in question and its genesis also questioned, in the sense the accused
\nhas not given the extra judicial confession and even if it is given, it is hit
\nby section 162.  Therefore, if at all it could be said on  the  basis  of  the
\nabove  decision  Ex.P4  is admissible in evidence and it is still open to test
\nthe  evidentiary  value  of  Ex.P4  subject  to  other  conditions   regarding
\nadmissibility under Section 162 Cr.P.C.  In this view relying on Ex.P4 as such
\nis not possible to sustain the conviction.\n<\/p>\n
                26.  In  re  Lakshmanan (1971 M.L.J.  Criminal 178) a Division
\nBench of this Court, had an occasion to consider Rule 72 of the Criminal Rules
\nof Practice.  It is held,  the  rule  was  intended  to  prevent  false  extra
\njudicial  confession  being secured with the help of village munsif, after the
\ncommencement of the investigation.  This safeguard  provided  under  Rule  72,
\nmust  be  strictly  construed,  otherwise  there  is every possibility for the
\ninvestigating officer to take this kind of extra judicial confession, from  an
\nobliging  Village  Administrative  Officer,  diverting  the  facts  to certain
\nextent, creating false evidence or  twisted  particulars  to  suit  the  case,
\naccording  to  the  whims  and  fancies  of the investigating officer, causing
\ninjustice.  In the above ruling it is held by the Division Bench as follows:
\n“Under Rule 72 of the Criminal Rules of Practice, the “Village Magistrates are
\nabsolutely prohibited from reducing to writing  any  confession  or  statement
\nwhatever  made by an accused person after the police investigation has begun”.
\nIt was intended to prevent  false  extra  judicial  confession  being  secured
\nthrough  the  help  of  the  village  munsif,  after  the  commencement of the
\ninvestigation.  The extra-judicial confession itself is a weak  evidence,  and
\nits value becomes less when it is obtained by a person, in the position of the
\nvillage munsif after investigation of the case by the police has started.  But
\non a careful examination of the relevant provisions relating to the matter, it
\nis not possible to state it is illegal or inadmissible in evidence, though the
\nweight to be attached to the same may be a relevant question for consideration
\non the facts and circumstances of each case.”\n<\/p>\n
                27.  In Raju &  2 others v.  State, etc.  (1995-2-L.W.  (Crl.)\n<\/p>\n
513) a Division Bench of this Court had ruled, that confession made to Village
\nAdministrative Officer, two weeks after the occurrence is unreliable.  But, in
\nour case the confession statement was said to have been recorded on  the  very
\nnext day, and therefore, if the confession statement is proved to be true, and
\ngenuine relying upon that statement may be permissible, to certain extent.\n<\/p>\n
                28.  In Ganesan  v.  State rep.  by Inspector of Police, Harur
\nPolice Station (2002-2-L.W.(Crl.) 746) a Division Bench of this Court has once
\nagain, ruled that though it is not  possible  to  state  that  the  confession
\nstatement  recorded  by  the  Village  Administrative  Officer  is  illegal or
\ninadmissible, the probative value would depend on the facts and  circumstances
\nof the  case.    Thus  making  it  clear  a confession statement even could be
\nrecorded after the investigation has begun, despite the prohibition  contained
\nin  Rule 72 and its probative value has to be tested, depending upon the facts
\nand circumstances of the case.\n<\/p>\n
                29.  The main thrust of the learned counsel for the  appellant
\nis,  that  even  assuming  that  the  Village  Administrative Officers are not
\ntotally barred from recording an extra judicial confession by Rule 72, if  the
\nstatements  are recorded, after the investigation has begun, then it should be
\nhit by section 162 Cr.P.C.  Section 162 Cr.P.C.  prohibits, totally the use of
\nany such statements or  any  record  thereof,  whether  any  police  diary  or
\notherwise  or  any part of such statement or record to be used for any purpose
\nsave as provided under the proviso.  Certainly Ex.P4 would not come under  the
\nproviso to section 162.  It is the specific submission of the learned cou nsel
\nfor  the  appellant  that  Ex.P4  comes  within  the four walls of section 162
\nCr.P.C.  and for that purpose, much reliance is placed upon  the  decision  in
\nKali Ram’  s case cited supra {(1973) 2 SCC 808}.  In the case involved in the
\nabove decision, a letter containing narration of facts relating to  the  crime
\naddressed  to  a police officer, during the course of investigation was sought
\nto be relied upon, to prove the guilt of the accused, where it  seems  he  had
\nconfessed the  crime.    The letter was not obtained by the police, whereas it
\nseems it was addressed from elsewhere to police officer but during the  course
\nof investigation.    The  Apex  Court  considering  the  effect of Section 162
\nCr.P.C.  laid down the law, which reads thus:\n<\/p>\n
“The prohibition contained in Section  162  related  to  all  statements  made
\nduring the  course of an investigation.  The letter which was addressed by ‘S’
\nto Station House Officer was in the nature of narration of what, according  to
\n‘S’ he had been told by the accused.  Such a letter would constitute statement
\nfor the  purpose  of section 162, Cr.P.C.  The prohibition relating to the use
\nof statement made to a police officer during the course  of  an  investigation
\ncannot  be  set  at  naught  by  the  police officer not himself recording the
\nstatement of a person but having it in the form of a  communication  addressed
\nby the  person  concerned  to  the  police  officer.  If a statement made by a
\nperson to a police officer in the course of an investigation is  inadmissible,
\nexcept  for the purposes mentioned in Section 162, the same would be true of a
\nletter containing narration of facts addressed by a person to a police officer
\nduring the course of an investigation.  It is not  permissible  to  circumvent
\nthe  prohibition  contained  in  Section  162  by  the  investigating  officer
\nobtaining a written statement of a person instead of the investigating officer
\nhimself recording that statement.”\n<\/p>\n
According to the submission of the learned senior counsel for  the  appellant,
\nthe  same  analogy  is  applicable  to  the  statement recorded by the Village
\nAdministrative Officer also, since Ex.P4 was recorded  during  the  course  of
\ninvestigation.    This   view  is  to  be  taken,  in  order  to  prevent  the
\ninvestigating agency to circumvent the prohibition contained  in  section  162
\nCr.P.C.   In  this  view, though Ex.P4 was not recorded by the police officer,
\nsince the extra judicial confession is said to have been recorded  during  the
\ncourse  of  investigation,  we are of the opinion, Ex.P4 is hit by section 162
\nCr.P.C.  and in this view it is inadmissible in evidence which should  follow,
\nthis  could not be the strong piece of evidence, to inflict a conviction or to
\nsustain the same.\n<\/p>\n
                30.  It  is  pointed  out  by  the  learned  counsel  for  the
\nappellant  that  Ex.P4 extra judicial confession has not reflected the natural
\nconduct of the accused and in this view also,  the  same  should  be  ignored,
\nplacing reliance in  a  decision  in  Thangavelu  v.  State of T.N.  (2002 SCC
\n(Cri) 1382) in which the Apex Court has ruled as follows:
\n“A perusal of this confession Ext.P-14 gives us an indication of  the  attempt
\nof the   prosecution   to   build   a  case  against  this  appellant.    This
\nextra-judicial confession is so full of facts starting  from  about  25  years
\nprior  to  the date of the incident and graphically details what happened over
\nthese years to his  sister  and  his  family  which  actually  is  the  motive
\nsuggested by the prosecution for the crime.  Ext.P-1 4 is recorded in nearly 4
\nfull  pages,  it  not  only  speaks of his motive to kill D-1 and D-2 but also
\ngives graphic details of the nature of the attack on  the  deceased  and  also
\nmentions in  detail the persons whom he saw during and after the incident.  In
\na manner of speaking, if  this  confession  is  true  the  appellant  had  the
\nforesight  to  guess  as  to who the prosecution witnesses are going to be and
\ngives an impression, therefore, he was seeking  to  corroborate  their  future
\nevidence.   In  our  opinion,  this  would hardly be the natural conduct of an
\naccused if he was voluntarily making a confession.    We  further  notice  the
\nunimaginable  similarity  in  Exts.P-14 and P-1 as also in the evidence of PW1
\nwhich supports the theory of the defence that there  was  an  attempt  by  the
\nprosecution to create evidence in this case.”\n<\/p>\n
This  ruling  is  the  answer  for  the observation in Sakthivel case {(200 3)
\nM.L.J.  (Crl.) 752}.  In Sakthivel case a Bench of this  Court  observed  that
\nminute  details had been given by the accused which were only to the exclusive
\nknowledge of the accused and in this view it cannot  be  said  that  the  same
\nwould have  been  written  by the Village Administrative Officer himself.  The
\nApex Court considering the minute details in the  extra  judicial  confession,
\nhas  taken  the  view  that  there was an attempt by the prosecution to create
\nevidence in this case, is probable.  In this view also Ex.P4 is  clouded  with
\nshadow  and  requires  eradication  of  the  same,  for  its  approval and its
\nreliability, to act upon.\n<\/p>\n
                31.     The learned counsel would contend that since the extra
\njudicial confession viz., Ex.P.4 itself is not reliable  or  inadmissible,  as
\nthe case may be, then the alleged recovery said to have been made on the basis
\nof  the extra judicial confession or on the basis of the disclosure statement,
\nalso should be held unacceptable, for which we have to subscribe our view.  It
\nis the case of  the  prosecution  that  in  Ex.P.4  itself,  the  accused  had
\ndisclosed  about  the  whereabouts of the cycle, M.O.13 and the weapon M.O.12.
\nBut unfortunately, the investigating officer would state that he had  examined
\nthe  accused,  recorded Ex.P.5 leading to the recovery of M.Os.12 and 13 under
\nExs.P6 & P.17.  If Ex.P.4 is not available, question of Ex.P.5 also would  not
\nhave come  into  existence.    Our  finding  is that Ex.P.4 is inadmissible in
\nevidence and therefore, the case projected on behalf of the  prosecution  that
\non  the  basis  of  extra judicial confession, another confession was obtained
\nfrom the accused, leading to the recovery, is  also  not  acceptable  legally.
\nFurther,  if  the  accused  had  disclosed  about the whereabouts of cycle and
\nweapon in Ex.P.4, subsequent, alleged confession also would  be  inadmissible.
\nIn  this view, we conclude, the recovery spoken by P.W.16, though supported by
\nP.Ws.7 and 8 is not acceptable to us and they are the documents  prepared  for
\nthe occasion having no evidentiary value.\n<\/p>\n
                32.     The  learned  Public  Prosecutor would contend that in
\nthe dress worn by the accused, Forensic Department  have  detected  ‘O’  Group
\nhuman  blood  as  that  of  the  deceased and therefore, it should be taken as
\nstrong circumstantial piece of evidence.  This contention could be accepted if
\nit is true that the shirt and dothi, M.Os.14 and 15 belonged  to  the  accused
\nand  the  accused  was  wearing  these  dresses  at  the time of the incident,
\notherwise it may not be possible to draw a presumption.    P.W.3,  who  claims
\nthat  she  had  seen  the  accused, going to the deceased cattle shed, has not
\nidentified these dresses, and P.W.8 who deposed that he  had  seen  the  blood
\nstain in the dresses of the accused also, failed to identify these dresses and
\nno  attempt  is  made on behalf of the prosecution even to show these material
\nobjects, to these witnesses to identify  the  same.    Here,  it  is  not  the
\nadmitted  position  that  these dresses were recovered from the accused though
\nclaimed so.  Though it is the case of  the  prosecution  that  bill  hook  was
\nrecovered  on  the  basis  of the confession given by the accused, it does not
\ncontain human ‘O’ Group blood, as seen from Ex.P.19, though  it  does  contain
\nhuman blood.  Therefore, on the basis of presumption also, fixing this accused
\nas the murderer is beyond our comprehension.\n<\/p>\n
                33.     The  trial  Court  in  our  considered opinion has not
\nproperly approached the case of the prosecution, taking into consideration the
\nprobability and other attending circumstances pointed out supra, whereas drawn
\na presumption on its own which is not warranted on the basis of the  materials
\navailable.  Because of the improper approach, the trial Court has committed an
\nerror,  in  convicting the accused and in this view, we are constrained to set
\naside the conviction.\n<\/p>\n
        34.     For the foregoing reasons, the accused\/appellant  succeeds  in
\nestablishing  that  the  prosecution  has  not  made  out  a  case  beyond all
\nreasonable doubt, thereby making him fit for acquittal, at least on the  basis
\nof the benefits of doubt.\n<\/p>\n
        35.     In  the  result,  the  appeal  is  allowed and the judgment of
\nconviction and sentence is set aside and  the  accused  is  acquitted  of  the
\ncharge framed  against him.  The bail bond, if any, executed by the accused at
\nthe time of coming out on bail shall stand discharged.\n<\/p>\n
Index :  Yes
\nWebsite :  Yes<\/p>\n
kv<\/p>\n
To\n<\/p>\n
1.      The Judicial Magistrate No.I, Namakkal.\n<\/p>\n
2.      -do- thro’ the Chief Judicial Magistrate, Salem\n<\/p>\n
3.      The Principal District & Sessions Judge, Salem.\n<\/p>\n
4.      The Superintendent, Central Prison, Coimbatore.<\/p>\n
5.      The Public Prosecutor, High Court, Madras\n<\/p>\n
6.      The Inspector of Police,        Namakkal Police Station,\n<\/p>\n
7.      The District Collector, Salem.\n<\/p>\n
8.      The Director General of Police, Mylapore, Chennai  4.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Arumugam vs State By Inspector Of Police on 4 December, 2003 In the High Court of Judicature at Madras Dated: 04\/12\/2003 Coram The Honourable Mr. Justice P.SATHASIVAM and The Honourable Mr. Justice M.THANIKACHALAM Crl. Appeal No. 334 of 1995 Arumugam … Appellant -Vs- State by Inspector of Police Namakkal Police Station. … […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-181998","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nArumugam vs State By Inspector Of Police on 4 December, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/arumugam-vs-state-by-inspector-of-police-on-4-december-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Arumugam vs State By Inspector Of Police on 4 December, 2003 - 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